Next Librarian of Congress could remake copyright law

Librarian of Congress James Billington is seen in Paris. Billington, the
librarian of Congress who has led the world's largest library for three
decades, is retiring. The library announced Wednesday that Billington
will retire Jan. 1.

Say the word “librarian” to anyone born before 1980 and they’ll
conjure up images of card catalogs, dimly lit study rooms and
Encyclopedia Britannicas. Hardly the stuff of the 21st century.

In fact, thanks to the Internet, plenty of Millennials have probably
never set foot in a library or spoken to someone who works for one.

Yet the person who holds enormous power over both Silicon
Valley and Hollywood happens to be a librarian. The Librarian of
Congress may be an obscure office, but the person in the job not only
oversees the U.S. Copyright Office but also decides what content —
music, software, film, etc. — deserves copyright protection.

The position is currently vacant. James Billington, who served as
Librarian of Congress for nearly three decades, said in June that he
will retire in January, and President Obama has yet to name a permanent
replacement. The vacancy has created enormous opportunity for firms
ranging from YouTube and Hulu to Netflix and Amazon to not only
influence Obama’s eventual choice but also to push through much-needed
reforms to the outdated Digital Millennium Copyright Act.

“I would imagine the new Librarian will focus on this,” said Michael
Donaldson, an entertainment lawyer and partner with the Donaldson &
Callif law firm in Los Angeles.

Hard to believe, but the U.S. copyright regime is even more
dysfunctional than the patent system. The copyright act has not kept
pace with new technology, like mobile devices and streaming media. To
make matters more confusing, the Librarian of Congress has the authority
each year to exempt certain content from copyright protection. Such
“fair use” rulings allow people to use the material without obtaining
permission from the copyright owner.

Congress passed the Digital Millennium Copyright Act in 1998, a time
that predates high-speed Internet, smartphones and social media. At the
time, holders of copyrights feared the unauthorized transfer of material
from a physical format such as a DVD to a website. So the law contains a
“notice-and-take-down” provision, a cumbersome process in which
copyright holders alerted online services about possible infringements
and the online services contacted whoever posted the material.

Today, broadband has made the takedown provision largely irrelevant,
given widespread Internet use and the speed at which users can post
material online. (Companies still have teams of people attempting to
remove popular material quickly, especially newer content, with mixed
results.)

“The notion that content might leak onto the Internet unless somehow
stopped now seems almost quaint,” George Mason University law Professor
Bruce Boydenwrote in a 2013 study. “Modern infringement is persistent,
ubiquitous, and gargantuan in scale. Takedown notices, with their
detailed requirements and elaborate back-and-forth, are a poor way to
achieve the routine policing of sites that receive thousands of new
files every hour.”

According to Boyden’s research, copyright owners are sending takedown
notices at an annual rate of 78 million infringing files. From March
2013 to August 2013, the Motion Picture Association of America alone
identified 25 million Web addresses that contained copyrighted material.

“Even for the largest media companies with the most resources at
their disposal, attempting to purge a site of even a fraction of the
highest-value content is like trying to bail out an oil tanker with a
thimble,” Boyden wrote.

Donaldson, the entertainment lawyer, says copyright holders should be
properly paid for their work. At the same time, things need to speed up
to serve the public interest, he said.

“We represent lots and lots of documentary filmmakers and they use
archival material,” Donaldson said. “Obtaining the material without
committing a crime is critical.”

With consumers demanding content at faster rates, and with the rise
of new platforms like Snapchat, Vine and livestreaming Periscope, the
problem will only get worse.

Speaking at the recent Virtuous Circle conference in Menlo Park,
Chris Bruss, president of digital content for Funny or Die, said the
company often creates content on the fly in response to breaking events
like the presidential debates. That means Funny or Die doesn’t always
have time to obtain permissions for the material it wants to use, he
said.

“The platform informs what the content will be,” Buss said. “What
platform that best serves that joke? It should be easier to license a
song or a clip, but multiple entities control parts of the content. We
have to do this in a day.”

Finding a new Librarian of Congress might help. Billington, 86, was a
prodigious fundraiser but had been roundly criticized for not adapting
the Library of Congress and copyright office to the digital age.

Some people say the copyright office should be removed from the
Library of Congress altogether and placed within the executive branch —
perhaps even combined with the U.S. Patent and Trademark Office within
the Commerce Department.

But Rep. Zoe Lofgren, D-San Jose, who represents much of Silicon
Valley, thinks rewriting the digital copyright act should take top
priority.

The law “is trying to control technology at the request of
Hollywood,” Lofgren said at the Virtuous Circle conference. “It’s always
a mistake to control technology in an effort to control content. You
should care about getting paid,” not controlling the technology itself.

“We have the same entrenched business models that are still
paranoid,” she said. “The powerful companies did not see what was coming
around the corner.”